Volume 20, Edition 4

The IMUA annual meeting is coming up. If you are not registered there is still time. Come on down and join us for a great annual meeting in Atlanta, GA and stop by our table for a visit. CAB will be sponsoring the transportation session.

There is not much to report this month. It seems like everyone is waiting to see what regulations will continue under the new administration so that they can figure out how to present their position. This month we report:

BRAKE VIOLATIONS – The FMCSA added an out-of-service (OOS) brake violation to the list of citations to be scored for CSA. This violation differs from other OOS brake violations currently in the SMS. A carrier will be considered in violation if 20 percent or more of the total brakes are defective and the vehicle is placed out of service. Violations which occur prior to May, 2017 will not be part of the calculation.

LARGE TRUCK AND BUS CRASH REPORT – FMCSA released its Large Truck and Bus Crash Facts for 2015. The initial point of impact of the truck was in the front in more than half of fatal truck crashes, followed by the rear at 20 percent, left side at 10.2 percent and the right side at 6.2 percent. When a truck rear-ends a passenger vehicle, both the trucker and car driver recorded driver-related factors 62.8 percent of the time. However, when a passenger vehicle rear-ends a truck, only 28.4 percent of truckers reported driver-related factors. Two-thirds of fatal truck crashes reported another vehicle’s encroachment into a trucker’s lane or other vehicle in the truck’s lane as a “critical pre-crash event.” Only 21 percent of crashes involved a trucker losing control or the truck’s movement, e.g. crossing intersection, turning left or right, etc. Only approximately 6% of fatal accidents resulted from faulty equipment on a truck. The report has many factors and breaks down the data into many categories. You can review the crash facts here.

CRASH REPORTS – A review by the National Safety Council (NSC) of motor vehicle crash reports from across the U.S. finds that no state “fully captures” critical data regarding incidences involving drunk and/or drugged drivers, distracted driving, and fatigued driving, among others. The findings are summarized in a new NSC report entitled: “Undercounted is Underinvested: How incomplete crash reports impact efforts to save lives.” According to the report there is a wide variety in what is reported by the various states, calling into question whether there is sufficient common data to allow analysis.

Preliminary estimates from the NSC indicate as many as 40,000 people died in car crashes in 2016. That marks a 6% increase over 2015 and a 14% increase over 2014 – the most dramatic two-year escalation since 1964. The NSC identified 23 specific crash factors that should be captured on crash reports. You can view the report here.

The recommendations of the NSC include:

* Filling out crash reports electronically

* Updating forms more frequently to capture emerging issues such as fatigue and the use of new technologies by drivers

* Adopting an “investigatory approach” to motor vehicles crashes

* Using electronic data recorders to collect crash factors such as performance information on any advanced driver assistance system in the vehicle

CURRENT CASES:

CARGO:

There was an interesting decision out of the Court in the Northern District of North Carolina. A motor carrier was sued by its customer for the theft of a shipment of cargo. The Court allowed the motor carrier to proceed against the shipper of the goods in a third party action for implied in law indemnity when the shipper allegedly misled the motor carrier as to the value of the freight, preventing the carrier from providing additional security. The Court also held that the motor carrier had a claim for deceptive trade practices under the applicable state law. (Macy’s v. Western Express, 2017 WL 1194358)

The Eastern District of Michigan denied a request to consolidate five cases in which the same broker sued 5 different truckers for cargo losses. The Court held that while the broker used the same contract with each carrier the remaining facts of each case differed sufficiently to warrant a denial of consolidation. (United Road Logistics v. JM Transfer, 2017 WL 1077951)

Everyone always asks about the exempt commodities, which is always a confusing issue. The Eastern District of Michigan addressed the issue and determined that bags of salad were exempt from regulation and therefore a Carmack Amendment claim would fail The Court vacated a default against the motor carrier and dismissed the action for lack of subject matter jurisdiction. (Service First Logistics v J. Rodriguez Trucking, 2017 WL 1365410)

Over in the Southern District of Texas the Court also dismissed all state law claims against a household goods carrier. Only the Carmack claim and the claim for attorney’s fees were permitted to continue. (United Van Lines v. Hajjar, 2017 US Dist. Lexis 54096) The same result was received in the Eastern District of Michigan when the transport was intended for overseas transport but was involved in an accident in the origin state. (Al Joukhay Trading v. Vantage International Shipping, 2017 WL 1382296)

AUTO:

A driver seeking recovery from a shipper for injuries at the transport site was unable to avoid dismissal of his personal injury as time barred under the applicable statute of limitations. While the shipper and the motor carrier had a master service agreement which allowed for an extended statute of limitations the 5th Circuit held that the agreement did not provide any protection for the driver. (Oubre v. Schlumberger, 2017 US App LEXIS 5890)

A motor carrier was not liable for the intentional torts of a driver who hit another driver. The Northern District of Ohio held that the driver was not operating within the scope of his employment when he hit the driver. The Court also held that there was no negligent hiring claim as the motor carrier undertook all necessary steps to vet the driver and that criminal background checks were not required. (Herndon V. Torres, 2017 WL 1422847)

The Eastern District of New York refused to remand an action back to State Court when the evidence led to a conclusion that the motor carrier who defeated complete diversity was fraudulently joined by the plaintiff. The non-diverse motor carrier was not the owner of the vehicle and did not employ the motor carrier, who was employed with the contractor hired by the motor carrier. The Court held that the motor carrier could not be held liable for the loss and was dismissed from the suit. (Pondexter v. Oruzio, 2017 WL 1079974)

In another decision the Eastern District did remand a case back to State Court when the plaintiff added a non-diverse party. This time the plaintiff tried to fight the remand alleging that the non-diverse party was really part of an extended corporate structure with a nerve center out of the state. The Court rejected that argument. (Palmiotti v. JAF Carriers, 2017 WL1166364)

Summary judgment was denied to a motor carrier who asserted the sudden emergency defense as the reason why he hit the plaintiff. The motor carrier was traveling in the lane when the plaintiff turned into the lane ahead of the defendant. The Southern District of Ohio held that there were questions of fact as to whether the accident happened so suddenly that the defendant could not avoid it. (Miller v. TST Transforce, 2017 WL 1079984)

An insured’s rejection of uninsured motorist coverage was held valid under Indiana law, even when executed 5 years prior to the date of loss. The Northern District of Indiana dismissed an action against the insurer of a motor carrier concluding that the rejection did not have be a part of the policy by endorsement. The Court concluded that under Indiana law the insured must only sign that coverage was rejected and the effective date of the rejection. (Kar v Swift Transportation, 2017 WL 1105934)

Ryder Truck Lines was successful in obtaining coverage under a motor carrier’s policy, and payment of all incurred defense costs and fees for the coverage suit. Ryder was afforded coverage under the Lessor-Additional Insured and Loss Payee endorsement to the policy. While the insurer argued that coverage was limited to claims against the lessor arising from the negligence of the motor carrier the Eastern District of Wisconsin held that the endorsement did not require a negligent act by the motor carrier. (Ryder Truck Rental Inc. v. National Fire Insurance, 2017 WL1194663)